Jury Think ™ The Social Psychology Of Group Deliberation

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Jury Think
The Social Psychology Of
Group Deliberation
Written by
Steven Lybrand, Ph.D.,
Jim Dobson & Samuel H. Solomon

“JuryThink”: The Social Psychology of Group Deliberation
Steven Lybrand Ph.D.*
James Dobson
Samuel H. Solomon
DOAR Litigation Support & Trial Services
ABSTRACT
In the past two decades, the field of jury research has demonstrated that
individuals serving on juries are especially susceptible to the powerful
currents of group influence. In this paper, we will examine the tendency of
jurors to subordinate their own -- presumably unique -- opinions as they
work toward a unanimous verdict. In short, individuals serving on juries
become susceptible to a form of group influence we have coined
JuryThink. Without an understanding of JuryThink, litigating attorneys
are rolling the dice against powerful forces they may be unprepared to
control. The good news is that jury research, if done with methodological
rigor, can uncover how JuryThink operates in particular cases.
Introduction: Understanding Individualism
As Americans, we have long felt that one of the defining characteristics of our
culture is our rugged individualism. With roots going back to the early colonists
in New England, American self-reliance expresses itself both in our publicly
stated policies to remain free of what George Washington called “entangling”
alliances and in our collective fantasies in which film stars such as John Wayne
and Gary Cooper are celebrated for their willingness to “go it alone” outside the
influence of the community.
In a poll conducted by the Pew Research Center in 2002, 65 percent of
Americans reported that they believe success in life depends on forces within
their individual control. In Germany only 32 percent of respondents felt this way,
while in India, less than 20 percent of those polled felt that they controlled their
own destiny. While it is true that many Americans have significant opportunities
for individual advancement, we might ask if this picture of ourselves as free and
autonomous individuals is an accurate description of how we actually think and
behave. This issue becomes significant when we consider the impact of how
individuals engage in decision making within a group setting.
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As jury consultants, we are intimately aware of how even those people most
committed to their individual points of view are affected by the power of the
group. When sitting in a room with up to a dozen other people, it is very difficult
not to be affected by the opinion of your peers, even if you remain unaware of the
subtle influence of the group (some have argued that social influence achieves
its most potent form when it operates below the radar of conscious awareness).
For years, we have watched how the opinions of even those individuals doggedly
committed to their opinions have their ideas ground down as they are subjected
to the powerful forces of group deliberation. The much-vaunted American
individualism turns out to be a rather weak force in the face of the collective
power of the jury. How does this group influence operate and what situational
forces could be powerful enough to bring to heel individuals whose opinions
seem so settled when the deliberation began? To understand the powerful
forces that operate in jury deliberations, we must turn to the research tradition
that takes seriously the extraordinary power of interpersonal influence.
From Groupthink to JuryThink
In Groupthink, Irving Janis’s classic work on group dynamics first published in
1972, the author argues that individuals brought together to make decisions tend
to act in ways that cannot be predicted from their prior beliefs and attitudes.
Janis notes that individuals in groups tend to suppress their more idiosyncratic
beliefs in the interest of achieving group consensus. Those whose opinions start
out in conflict with that of the majority are put under various forms of social
pressure – from subtle to blatant – to bring their opinions into line with the
dominant thinking of the group. In some interesting cases, individuals with ideas
in conflict with the majority can sometimes persuade the majority to “flip,” thereby
creating a new center of gravity to which the others feel compelled to conform.
While not the norm, this shift does occur in cases in which the evidence is less
than fully convincing and the jurors’ commitment to their positions is shallow.
For Janis, the idea of the individual as a distinct and autonomous being (and
therefore free of the pressures of the social group), begins to dissolve under the
sway of forces that in the 19 th century used to be called the “group mind.” In
many areas of social life (when we are with friends, with family, at work, etc.),
individuals seem to sacrifice (often unknowingly) their independent judgment in
the interest of the maintaining “good relations” (or what social psychologists call
group cohesiveness or solidarity). That is, when we are with others, there are
strong norms that encourage us to moderate our idiosyncratic beliefs in the
interest of group harmony.
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While the old conception of a supra-individual “group mind” has not survived the
test of scientific scrutiny, the powerful psychological forces that Janis identified
under the label of “groupthink” are real and operate in some of the most
important arenas of social life, including the one institution established by society
where we are empowered to judge our fellow citizens: the jury trial.
Individualistic Approaches to the Study of Jury Decision Making
Largely oblivious to Janis’s findings, the research on decision making within
juries has long suffered from an overemphasis on the individual level of analysis
at the expense of group processes. The oldest model of jury decision making is
J.H. Davis’s Social Decision Scheme (SDS) in which it is proposed that the final
group verdict can be explained by means of a mathematical formula that simply
sums up the decisions of individual jurors prior to deliberation. In order to make
his model work mathematically, Davis had to assume that jurors would not
change their opinion during the course of the deliberations, an assumption that
many critics rightly found too limiting for understanding actual jury behavior.
Later models, such as N.H. Anderson’s Information Integration Theory or that of
Jo-Ellan Dimitrius’s intuitional model of juror assessment discussed in her 1998
book, Reading People, while less dependent on limiting mathematical
assumptions, still suffer from an exclusive focus on individual level phenomena.
Dimitrius claims to be able to “read” individuals through the use of intuitional
skills, but sidesteps altogether actual group deliberations. It seems that few
researchers are willing to take on juries in their full complexity as actively
functioning groups, yet in their failure to do so, these researchers miss how jury
deliberations involve an almost roller-coaster ride of haphazard recollection,
emotional turmoil, rational deliberation and eventual compromise as the group
lurches toward a legally mandated unanimous decision (or, in those cases in
which the center does not hold, a hung jury).
In the place of the above individualistic models of jury decision making we would
like to propose a more nuanced conception of jury deliberations that attempts to
do for jury behavior what Janis did for policy making behavior. JuryThink refers
to the social psychological group dynamics that draw the individual juror out of
him or her self into the broader currents of group decision-making. We will spend
the rest of the article outlining how this new conception of deliberation operates
within juries and how an understanding of this behavior can lead to more
efficacious attorney-juror communication.
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The Dynamics of JuryThink
What happens when jurors, after days, weeks or even months of trial testimony
and argument, finally come to the deliberation phase of the legal process?
Although the experience varies with the type of case, in our own specialty area,
complex commercial litigation, the overwhelming experience of jurors is a sense
of relief that the swirl of conflicting facts and testimony (and lawyerly posturing) is
finally at an end. As the trial unfolds, each juror tries to make sense of the
arguments presented by constructing a story or narrative (or drawing on a
narrative already constructed for him/her by the attorneys) that makes sense of
the facts as he/she understands them.
In a recent case we studied, the plaintiff’s story, while hardly compelling in strictly
legal terms, was simple, easy to understand and much less cognitively
demanding than the defendant’s more complex and fact-laden story. When the
jurors retired to deliberate, they collectively attempted to work out which of the
two stories presented to them was the more convincing. One juror recalled a
piece of the evidence that had confused him during argument. Other jurors
weighed in on the issue, clarifying how that fact piece fit into the story as they
understood it. Then another juror, whose memory had been jogged by the
exchange, brought up a point of fact she could not make sense of within the
framework of the story that had just been discussed. The back and forth
discussion continued in this fashion for some time. As it unfolded, it became very
clear that the plaintiff’s more simple narrative was the one that resonated with the
jurors, and thus was the story that finally carried the day. It seemed that the
defendant’s more technical case, while legally and factually sound, was unable to
achieve a critical mass with the jurors. Why?
In the above case, as in many others like it, individual jurors are often confused
by the testimony and are desperate for some sense of coherence or meaning.
They turn to others in the jury for information and reassurance of the working
story they had internalized during the trial. The group then becomes a reservoir
for ideas and interpretations to which the entire group can contribute and draw
from. Before long, a collective narrative or story emerges that starts to gather
together all the facts of the case in a way that makes sense to the collective. At
that point, the deliberations become larger than any one individual, no matter
how persuasive that one individual may be, as he or she must ultimately deal
with the narrative reservoir as it has been constituted by the group. And with this
new collective reality, we are out of the realm of individual thought and into the
realm of JuryThink.
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In the thick of JuryThink, individuals, while still individuals in some physical
sense, are no longer free to say anything they want, as “deviant” contributions
are quickly countered and either rejected or assimilated into the dominant
narrative. Individuals who insist on clinging onto narrative-discrepant facts or
counter-narratives are subject to increasing forms of pressure to abandon their
position. While some lone wolves try to hold out, most mortals eventually relent
as the criticism, ostracism and the potential for exclusion is far too painful an
experience for most mere mortals (the Amish practice of shunning is a clear case
of using the power of the group to bring the wayward into line).
Lessons for Litigation
Developments in jury research suggest that there are some important lessons
that can be used to craft legal strategy.
1. Litigators should be aware that jury selection, while important, is not the
only arrow they have in their quiver. The simple fact is that in many
venues, voir dire is severely limited, which leaves attorneys with little
knowledge about the pre-existing attitudes of the jurors actually hearing
the case. In addition, to focus on individual juror characteristics (as is the
practice of many jury consultants), in our view, is shortsighted. Indeed, in
many instances individual juror attitudes are not always predictive of
actual behavior during deliberation. Decades of research attempting to
use personality characteristics to predict situation-specific behaviors (such
as jury deliberation behavior) have largely failed due to the power of what
we have called JuryThink. Jury deliberations are powerful collective
situations where no man or woman is an island and where one is forced to
respond to the arguments of others. Knowledge of the attitudes and
predispositions brought by individual jurors to the trial, while useful for deselecting
obviously problematic jurors, may be less useful in
understanding how jurors will vote collectively at the end of the day.
2. Having said the above, insofar as the venue allows for voir dire, questions
should be asked that identify leadership or dominance characteristics of
people in order to determine who will likely attempt to asset “control” over
their peers. While it is the rare among us who can convince a half-dozen
or more peers to flip their thinking completely, there are people who
possess an almost animal sense of the mood of the group and who use
this to sway the group toward their preferred position.
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3. In the legal realm, the equivalent to location, location, location would be:
story, story, story. Jurors need to understand how all the pieces of the
puzzle fit together, in short, how they all fit together as a coherent story.
The jurors who have been able to make sense of the case as a story are
able to help the other jurors who are uncertain or confused as to the
contours of the case. If well-constructed by the attorney, their story not
only provides a framework within which to place the evidence, it also
provides answers to any questions the jurors will generate.
4. Using focus groups and mock trials, we have studied how jurors
collectively make sense of the case as it has been presented by the
attorneys. If there is one “law” of jury consulting, it would have to be that
until you’ve actually tried your case in front of a jury (or a simulated jury),
you really have no idea how it will actually be heard and accepted by
members of the group. Even seasoned attorneys express astonishment
when they attend focus groups and, standing behind a one-way mirror,
watch JuryThink at work. Even the most exquisite legal arguments can
be construed by mock juries in ways no one had anticipated. This type of
jury research is actual empirical research: we cannot be 100% certain of
how an argument will fly until we actually test it in front of a panel of jurors.
5. If it is necessary to monitor how the actual case is unfolding at trial, it may
be advisable to run shadow juries in order to make sure the pre-tested
arguments are coming through as planned. They’ve proven to be an
invaluable source of real time data. For more information on shadow
juries please contact me at jdobson@doar.com.
Author Biographies
Steven Lybrand Ph.D.
Steven Lybrand is a member of DOAR’s Jury Research and Analytical Graphics division
and is a specialist in jury research and litigation strategy. Dr. Lybrand specializes in the
social psychology of jury decision making and in the interpretation of complex legal
information. Dr. Lybrand, formerly the Director of Criminal Justice and a tenured
professor of sociology at the University of St. Thomas in St. Paul, Minnesota, has coauthored
several publications including "Symbolic Racism in Candidate Evaluation: An
Experiment." Political Behavior, Volume 12, No. 4: pp 385-402 and “Synthesis of
phosphatidylethanol-a potential marker for adult males at risk for alcoholism." Proceedings
of the National Academy of Sciences, Vol. 85, pp. 9778-9782. Dr. Lybrand is also an
award-winning documentary filmmaker and producer whose films have aired on PBS.
Steven holds a Ph.D. from the University of Wisconsin-Madison. He can be reached at
slybrand@doar.com.
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James Dobson
As Director of Research & Analytical Graphics, Mr. Dobson oversees both the jury
research and trial graphics teams involved in the design and implementation of courtroom
presentations. In support of DOAR clients, he has personally developed extensive
research designs and reports in a wide range of both civil and criminal cases dealing with
highly complex issues. Mr. Dobson’s skilled methods in focus group facilitation uncover
the underlying perceptions, attitudes, and beliefs that are critically important in
understanding how the modern juror assesses arguments. In addition, Jim oversees a
group of highly specialized litigation artist who craft persuasive trial graphics based on
jury research findings. Jim is a much sought after speaker and consultant in the area of
graphic design as it relates to juror perceptions. Jim is a co-author of “What Juries Want
to Hear II: Reverse Engineering the Verdict,” published in the Temple University Law
Review.
Jim has a BA in Human Relations, a MA in Sociology and is currently writing his Ph.D.
dissertation entitled “Exorcism and Criminally Deviant Behavior in Contemporary
America: media reaction and criminal justice decisions in five high-profile cases” at
Fordham University. He can be reached at jdobson@doar.com.
Samuel H. Solomon
Samuel H. Solomon, with over 30 years experience in the legal, financial and information
technology industries is a CEO, legal strategist, and prominent speaker. His command of
the intricacies of trial strategy, visual persuasion and courtroom presentation technology
have led to the formation of DOAR. During the past 5 years, his scope has broadened to
include issues facing firms in document and electronic discovery. Founded in 1989,
DOAR offers litigation and trial support services to law firms and systems integration
technology to courts and corporations representing more than 3,000 clients nationwide.
Sam’s unique perspective, eclectic education and varied background make him a much
sought-after speaker and consultant. His most recent presentations have covered Trial
Presentation Strategy, Courtroom Communication, Jury Psychology, Electronic Evidence
and Discovery and The Impact of Information Technology on the American Justice
System. He recently co-authored “What Juries Want to Hear II: Reverse Engineering the
Verdict” in The Temple Law Review and PowerPoint for Litigators, the seminal work on
the presentation of evidence using technology, published by NITA Press. In 2002, he
contributed to two critically acclaimed works: Handbook on Courtroom Technology – A
Lawyers Guide and A Judges Guide by NITA Press. He is an instructor in the LLM
Advocacy program at Temple University Law School, the Hanley Advanced Advocacy
Program for NITA and and spoken for the New York State Bar Association. Sam can be
reached at sam@doar.com.
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